Companion to East Timor - The case before the International Court of Justice

The case before the International Court of Justice

The Timor Gap Treaty between Australia and Indonesia entered into force on 9 February 1991. Portugal brought an action against Australia in the International Court of Justice, which began hearing arguments in 1995. Since Indonesia had not accepted the Court's compulsory jurisdiction, Portugal could not sue it directly. An important precedent in Portugal's action against Australia was an ICJ ruling in 1971 concerning South Africa's presence in Namibia in defiance of UN Security Council resolutions. The ICJ had ruled that UN member states were obliged to refrain from any action that would imply recognition of the legality of South Africa's presence in Namibia. Australia may have been in violation of a similar duty to refrain from legitimizing the Indonesian occupation of East Timor via the Timor Gap Treaty.

Australian support groups openly sided with Portugal against their own government, writing letters to the editor, holding press conferences and speaking up against the legality of the Timor Gap Treaty. An Australian lawyer, Ms Sasha Stepan, appeared on the bench with the Portuguese legal team. Portugal's Ambassador to the Netherlands (the seat of the ICJ), Mr. Antonio Cascais, thanked the Australian people for their support. As expected, the Portuguese side argued that Australia had 'failed to observe the obligation to respect the duties and powers of Portugal as the administering Power of East Timor and the right of the people of East Timor to self-determination and the related rights.' Portugal's argument was that there was a general obligation for states to not recognize East Timor's annexation and that Australia was therefore obliged not to deal with Indonesia in respect of the territory.

Foreign Minister Gareth Evans briefed the Australian Cabinet in confidence that the Solicitor-General, Mr. Gavan Griffiths, regarded the outcome as 'uncertain' and that ICJ judges could criticize Australia in a way that would 'have implications for our policy.' Australia would have to 'address aspects of the self-determination argument which the Government had so far avoided.'1 Ever conscious that East Timor's right of self-determination was a major obstacle to its case, Australia forewarned the Indonesian government that it would be forced to acknowledge the continued existence of this right.2

Australia claimed in court that it was being sued in place of Indonesia – the real target of Portugal's claim. It argued that for the ICJ to rule on Australia's conduct, it would first have to rule on the lawfulness of Indonesia's invasion and occupation of East Timor. However, since Indonesia had not accepted the ICJ's jurisdiction, it submitted that the ICJ could not adjudicate on the matter. Australia's legal representatives were compelled to argue – in contradiction to their long-standing position – that even though Australia was dealing with Indonesia, it still recognized that the people of East Timor had the right to self-determination and was a non-self-governing territory under Chapter XI of the UN Charter. They said that Australia recognized this position even before Portugal accepted it in 1974, and it dealt with Portugal because general international law imposed no obligations on itself not to deal with Portugal. Similarly, they said, Australia was dealing with Indonesia because general international law imposed no obligations on itself not to deal with Indonesia.

Portugal attempted to answer Australia's objection in two ways. First, it argued that since the right of self-determination was an obligation erga omnes, Australia was obliged to respect East Timor's right of self-determination irrespective of the obligations of Indonesia. In a majority verdict, the ICJ accepted Portugal's argument but denied the implications that were said to flow from it, saying:

the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.

In other words, the ICJ held that it could not adjudicate upon Australia's conduct without first deciding on the lawfulness of Indonesia's conduct. Given the 'fundamental principle' in the ICJ's Statute that it could only exercise jurisdiction over a State with its consent, the Court concluded that it could not rule on Portugal's claims.

Portugal's second argument was that the United Nations had already decided that East Timor remained a self-determination territory despite Indonesia's ongoing occupation. The ICJ's majority view of this argument was that General Assembly and Security Council resolutions nominating Portugal's role as the administering Power of East Timor did not compel Australia to deal exclusively with it as regards the continental shelf of East Timor. It noted that 'several States have concluded with Indonesia treaties capable of application to East Timor but which do not include any reservation in regard to that Territory.'

Two judges dissented from the majority position. Judge Weeramantry and Judge ad hoc Skubiszewski took the view that Australia had a duty not to recognize East Timor's annexation, and that such a verdict against Australia did not imply a finding against the rights of Indonesia. Many legal experts criticized the ICJ's majority verdict, which was clearly influenced by the fact that the UN's member states were not overwhelmingly in favour of East Timorese independence. Had the situation been less ambivalent, the ICJ's verdict may well have been different.

Portugal could also have advanced a more robust legal argument. It relied on East Timor's right of self-determination as the basis of its argument that Australia had an obligation to not recognize the annexation. The only way the ICJ could adjudicate on this was to find that Indonesia was unlawfully violating the right of self-determination – something it was not prepared to do, since Indonesia had not accepted the Court's jurisdiction. Had Portugal relied on the obligation to not recognize a change of territory acquired by force, the situation may well have been different. All states are obliged not to recognize a change of territory acquired by force, regardless of the legality of the use of force. The ICJ would only have needed to find that Indonesia's occupation resulted from the use of force, whether or not that force was unlawful. The legal scholar James Crawford explains this concept by an analogy:

For example it does not matter whether Israel was acting in self-defence in occupying the West Bank and the Gaza Strip during the Six day War: whether or not it was then acting lawfully, third States are obliged not to recognize its sovereignty over those territories pending a final settlement.3

However, the ICJ made an important observation by declaring that East Timor's right to self-determination was 'irreproachable,' that East Timor remained a Non-Self-Governing Territory and that its people retained the right to self-determination. It is worth noting that since the ICJ had decided that the case could not proceed to merits because of Indonesian interests, it need not have made any additional comments on self determination. The fact that it did showed that it wanted to place these points on the record as a judicial determination.

1 Evans' views on East Timor ICJ case, The Australian, 7 February 1995.

2 ABC Radio, Australia's arguments in Court, Radio Australia, 7 February 1995.

3 J. Crawford, The Creation of States in International Law. (Cambridge: Cambridge University Press, 2006).